45 S.E.2d 278 | Ga. | 1947
The bill of exceptions recites that the trial court overruled the oral motion of the defendant (now plaintiff in error) to dismiss the petition and the restraining order previously granted at the interlocutory hearing, on the grounds that the admissions of the plaintiff and the evidence for the defendant disproved any right of recovery in the plaintiff. The court's judgment, set out in the bill of exceptions, makes no reference to any motion to dismiss, and the former restraining order is modified to require the plaintiff to make certain payments into the court. Held:
1. "All defects which appear on the face of the pleadings may be taken advantage of by motion." Code, § 81-302. "To sustain a motion to dismiss, made by way of demurrer to the declaration, the motion will not be allowed, unless every material fact on which the motion is founded, is apparent in the declaration." Bower v. Douglass,
2. "When a plaintiff in error brings a case here he must show error which has hurt him." Brown v. Atlanta,
Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.